EPA v. EME Homer City Generation

Abby Bar-Lev, Dorot Fellow

Air pollution that travels by wind poses a serious threat both to downwind states’ ability to meet air quality standards and to the health and safety of downwind states’ residents. Pollution from factories in states like Illinois, Indiana, and Michigan may wind up causing serious health problems in states like Connecticut, Delaware, and Maryland.

Congress responded to this problem by including in the Clean Air Act a “good neighbor” provision, which requires upwind states to implement policies that prevent them from emitting pollution that “significantly contributes” to air quality problems in downwind states.

To make sure that states follow their statutory obligations under the “good neighbor” provision, the EPA promulgated the Transport Rule. This rule identified upwind states whose pollution had “significantly contributed” to downwind states’ air quality problems, and which had not done enough about it to comply with the “good neighbor” provision. Under the Transport Rule, the EPA could then put forward a federal implementation plan for those states to bring them into compliance. To do so, as explained by SCOTUSblog, the EPA used a cost-based formula that apportioned an “‘upwind’ state’s duty to control emissions from power plants within its own borders according to how feasibly it could reduce the cross-state impact.” Several upwind states and various industry groups are challenging the rule as invalid under the Clean Air Act; they argue that the statute only permits the EPA to force a state to reduce its “significant contributions” to dirtying downwind states’ air. But, they say the EPA has gone farther, requiring states to reduce more emissions than those that constitute their “significant contributions.”

During oral argument—which the Court extended to 90 minutes rather than the usual 60—much time was spent discussing how much discretion the EPA is allowed in defining and calculating “significantly contributes” and in devising an enforcement plan. Several of the justices—with the exception of Justice Scalia—continued to refer back to the actual text of the Clean Air Act and seemed to find that the language invited the EPA to use its judgment in achieving the Act’s goals of advancing downwind states’ ability to meet air quality standards. Justice Alito recused himself from the case.

The Contours of “Contribute Significantly”

Who You'll Hear: Deputy Solicitor General Malcolm Stewart

In explaining how hard it is to determine which upwind state’s air pollution “contributed significantly” to a downwind state’s problems meeting air quality standards—and thus the need for the EPA to use its best judgment—Deputy Solicitor General Malcolm Stewart drew an analogy to a basketball game. In the clip below, you’ll hear the Deputy Solicitor General discuss how the EPA’s task is similar to that of a basketball coach after a losing game: A coach might be quick to identify a missed half-court shot at the buzzer that would have won the game—had it been successful—as the “but-for” cause of the loss—that is, but for that missed shot, we would have won. But when speaking in terms of significant contributions to a bad result, a coach is more likely to identify several additional errors that could have been avoided throughout the game—a missed layup, a turnover—rather than focus only on the failure of accomplishing a long-shot attempt. The EPA is similarly given the difficult responsibility, under the Clean Air Act, of figuring out which state’s pollution has “contributed significantly” to a neighboring state’s difficulty in meeting federal air quality standards, a task that involves a variety of factors and variables.

A “Judgmental Component” for the EPA

In this clip you will hear a discussion of the meaning of the term “significant” and the EPA’s discretion in making that determination. Industry groups are arguing that the EPA should have little discretion in creating a solution, and should focus on regulating the amount of pollutants rather than taking the cost of emission control plans into consideration; they argue that the EPA is acting unfairly by making some upwind states—who generate relatively less pollution—bear, nonetheless, a higher cost burden because it is relatively affordable for that state to do so. With the exception of Justice Scalia, the Justices in this clip seem sympathetic to the EPA’s need to have that kind of discretion in crafting a solution. In reference to the text of the Clean Air Act, Justice Kennedy says that the term “significantly” necessarily includes a “judgmental component.”

Taking Cost into Account

In this clip, you hear a back-and-forth between Deputy Solicitor General Stewart and Justice Scalia regarding the necessity of EPA’s being able to take costs into account—which industry challengers argue is prohibited by the statute—in carrying out the good neighbor provision of the Clean Air Act. Industry challengers argue that a cost-based approach is unfair to upwind states that have relatively minor emissions problems but end up paying more, whereas the EPA argues that given the variety of factors that create a “significant” contribution, a straight proportionality calculation is impossible and that an efficient solution must include consideration of cost. You hear Mr. Stewart discuss why a proportionality calculation based on amount of pollutants is unworkable, pushback from Justice Scalia, and a response by Mr. Stewart about the illogic of the industry challengers’ argument: “[T]he only ill consequence of overcontrol is cost. … The only reason that people worry about overcontrol, about reducing emissions more than they need to be, is that it costs money. And if that’s the problem to be avoided, it seems strange that EPA can’t take account of costs in devising a solution.”

Anything Else Would Be Contrary to the Statute

Who You'll Hear: Chief Justice John Roberts, Jonathan Mitchell, attorney for state and local respondents

Chief Justice Roberts seemed to express a sympathetic view of the EPA’s obligations under the Clean Air Act. In this clip, you hear Chief Justice Roberts responding to Texas Solicitor General Jonathan Mitchell, who was arguing on behalf of the state and local respondents. Mr. Mitchell began his oral argument by stating that the EPA cannot impose a federal implementation plan (which you will hear him call “FIP”) because the states, in creating their state implementation plans (which you will hear him call “SIPs”), lacked guidance from the EPA about the “contribute significantly” language from the Clean Air Act. Chief Justice Roberts responded by agreeing that it is a difficult task, but that “it is what the statute says.” Moreover, Chief Justice Roberts stated, “It seems to me that if EPA had taken a different view, it would have been contrary to the statute.”